The Queen v Watson

[2007] NZCA 432

IN THE COURT OF APPEAL OF NEW ZEALAND

CA247/07
[2007] NZCA 432

THE QUEEN

v

JAMES MALCOLM WATSON

Hearing:17 September 2007

Court:Ellen France, John Hansen and Wild JJ

Counsel:V C Nisbet for Appellant

M D Downs for Crown

Judgment:5 October 2007 at 3 pm

JUDGMENT OF THE COURT

An extension of time to appeal is granted, but the appeal, which is against sentence, is dismissed.

REASONS OF THE COURT

(Given by Wild J)

[1]       On the grounds that it is manifestly excessive, Mr Watson seeks leave to appeal against a sentence of eight years imprisonment imposed on him by Judge Davidson in the Wellington District Court on 19 July 2005 after he pleaded guilty to various charges under the Misuse of Drugs Act 1975 and the Arms Act 1983.  Mr Nisbet submits the appropriate sentence was five to seven years.

[2]       The charges on which Mr Watson was sentenced were:

Offence	Section	MAXIMUM SENTENCE	Sentence imposed
Cultivation of cannabis (x2)	s 9(1) Misuse of Drugs Act	7 years imprisonment	3 years imprisonment
Possession of cannabis for sale (x3)	s 6(1)(e) and (f) Misuse of Drugs Act	8 years imprisonment	3 years imprisonment
Sale of cannabis	s 6(1)(e) Misuse of Drugs Act	8 years imprisonment	2 years imprisonment
Possession of equipment for cultivation of cannabis	s 12A(2) Misuse of Drugs Act	5 years imprisonment	2 years imprisonment
Supply of equipment for cultivation of cannabis	s 12A(1) Misuse of Drugs Act	7 years imprisonment	2 years imprisonment
Production of cannabis resin	s 6(1)(b) Misuse of Drugs Act	14 years imprisonment	2 years imprisonment
Unlawful possession of firearm	s 45(1) Arms Act	4 years imprisonment / $5,000 fine	2 years imprisonment
Unlawful possession of ammunition	s 45(1) Arms Act	4 years imprisonment / $5,000 fine	2 years imprisonment

The sentences on each of the cultivation charges were imposed cumulatively, as they represented two distinct cultivation operations. The sentences for possession for supply were imposed concurrently. The remaining sentences were imposed concurrently as amongst themselves, but cumulative on the earlier sentences. This resulted in the overall sentence of eight years imprisonment.

[3]       As the notice of appeal was filed some 21 months out of time, an extension of time to appeal is required.  The Crown was justified in opposing an extension.  In R v F (CA261/07) [2007] NZCA 417 this Court refused to extend time for appeals against successive sentences. The appeal against the more recent sentence was almost two years out of time. Here, the explanation for the delay in appealing is a belated change of heart. That is hardly a ground for granting leave. Although with considerable misgivings, we grant leave for two reasons. First, the Crown could not point to any prejudice. Second, we think it best that Mr Watson’s appeal is disposed of on its merits.

[4]       Mr Watson and his wife and co-accused Mrs Eva Watson, through their company Discount Hydroponics Wellington Ltd (DHL), ran a large scale vertically integrated cannabis business.  From premises in Lyall Bay they sold all the equipment necessary to grow cannabis hydroponically.  Customers who wanted cannabis seedlings (clones) could buy them as well.  Some six undercover police officers did so during an 11 month surveillance period.

[5]       Over that 11 month period DHL banked approximately $500,000.  The Crown accepts an unknown percentage of this turnover came from legitimate business.

[6]       The Watsons also had two hydroponic cannabis growing operations.  One was in a residential home in Sutherland Road, Lyall Bay.  The Watsons shared the rent for this property with the owner.  When the Police searched inside the house they found:

·     29 cannabis plants with a potential yield of $167,000 if sold in ounces.

·     4.06 kg of good quality cannabis and 1.7 kg of lesser quality cannabis.  56 ounces of the good quality cannabis was packaged into separate ounces, ready for sale.  This plant material had a value around $43,500.

·     57 cannabis clone seedlings which DHL could have sold as clones for $1,140.

·     60 litres of isopropyl alcohol.

[7]       The other operation was in a property the Watsons had purchased at Otaihanga on the Kapiti Coast.  The scale of this operation required a resident caretaker.  It occupied one garage and was being expanded into a second garage which was under construction.  A Police search located:

·     24 mature plants with a potential yield of approximately $175,000 if sold in ounces.

·     62 cannabis seedlings with a potential sale value (if sold by DHL as clones) of about $1,240.

·     0.6 kg of low quality cannabis.

·     4.68 kg of good quality cannabis, including 71 ready packaged ounce bags.  This material had a value of approximately $50,000.

[8]       Judge Davidson noted all of this: DC WN C.049034  He referred in a not unsympathetic way to Mr Watson, in particular noting:

·     His pleas of guilty.

·     That he was 67, had been married for 40 years, was a superannuitant, and was no longer in the best of health.  He had five children, 15 grandchildren and one great-grandchild.

·     His long list of convictions for cannabis offending going back over 40 years, including for possession for supply, cultivation including use of a firearm to protect the cannabis crop, and simple possession.  The Judge noted that in 1990 Mr Watson had been sentenced for cultivating and possessing for supply some 346 kg (0.3 of a tonne) of dried cannabis.

·     His lifelong and severe addiction to cannabis, which had become an obsession about the growing and use of cannabis.

·     Mr Watson’s belief that cannabis should be legalised, to the extent that, when earlier imprisoned for cannabis offending, he saw himself “as a political prisoner, not as a criminal” (at [21]).

·     That since being arrested Mr Watson had made “significant progress” with counselling at Odyssey House (at [23]).

[9]       The critical passages in what the Judge said to Mr Watson upon sentence are:

[30]     In my view each of the two cultivations in themselves could rightly justify a starting range of about five years’ imprisonment, with additional imprisonment to be imposed for the charges that reflect the ongoing retailing from the Lyall Bay commercial premises.  An overall starting point in sentencing you, in my view, in excess of 12 years could easily be warranted.  Standing back and drawing a broad brush across your offending as best I am able in my view the appropriate starting point for this offending as a whole, is imprisonment for 11 years.

[31]     From that I give you a credit of three years’ imprisonment for the mitigating features that I have just described and sentence you to imprisonment for eight years.

[10]     Mr Nisbet focused primarily on what he contended were the mitigating features.  Those he particularly urged on us reflect that:

·     The Watsons had purchased DHL intending to operate it legitimately.  But Mr Watson  had been unable to resist the temptation to sell equipment and cannabis seedlings to cannabis growers.

·     The Judge allowed deterrence to overtake any proper consideration of Mr Watson’s attempts to rehabilitate himself.

·     The sentence was excessive given Mr Watson’s age, his insight, his attempts to rehabilitate himself, and his lifelong addiction to cannabis.

[11]     The breadth and scale of the offending here makes this Court’s observation in R v Daley (1999) 17 CRNZ 388 at [19] (CA) an appropriate starting point:

[I]t is to be borne in mind that the maximum penalty is not to be reserved for the worst imaginable case, rather the issue is whether the case falls within the broad band of most serious cases:  R v Beri [1987] 1 NZLR 46 (CA), at p 48.

We refer again to Daley at [17] below.

[12]     We also accept both Mr Downs’ other submissions as to the appropriate sentencing levels:

·     That the cultivation charges (at least when taken together) fell within R v Terewi [1999] 3 NZLR 62 (CA) category three (sentencing start point in the range of four years plus) and justified a sentencing starting point at or near the statutory maximum of seven years imprisonment.

·     The sale of cannabis, possession of cannabis for supply, production/possession of cannabis resin for supply, possession of cannabis cultivation equipment, supply of cannabis cultivation equipment and unlawful possession of firearms (a pistol, rifle and ammunition) charges, when assessed against Mr Watson’s previous record of drug convictions, meant that “a double-figure starting point was necessary, regardless of the way in which the sentence was structured”.

[13]     Although the Judge needed to take a totality approach, and thus an overall starting point, we do not endorse his approach of arriving at that starting point by simply doubling the appropriate starting point for each of the Lyall Bay and Otaihanga cannabis cultivations.

[14]     Significantly, Mr Nisbet did not seek to advance his submission that the sentence was manifestly excessive by contending that it was altogether out of line with comparable sentences.  Despite that, and their factual distinctions, it is instructive to consider sentences imposed for the most serious type of cannabis offending. 

[15]     This Court’s decision in R v Jeffries [1992] 1 NZLR 134 is a convenient starting point, although obviously it pre-dated Terewi.  Mr Jeffries appealed unsuccessfully against an effective sentence of eight and a half years imprisonment imposed on him for two separate and successive cannabis operations.  The first was on a remote farm property south west of Te Kuiti where the Police discovered 8,222 cannabis plants in various stages of growth in two sophisticated plantations in cleared bush.  They were enclosed and roofed over with wire netting, on which undergrowth had been placed for camouflage.  Estimates of the value of the crop had it attained maturity ranged up to $8 million.  While on bail awaiting trial, Mr Jeffries absconded, changed his name, and embarked on a second cannabis operation, this time at Halcombe in the Rangatikei.  The Police found 516 plants growing in small plots in Mr Jeffries’ garden.  They were well cared for, with fertiliser and irrigation and a small hothouse, together with thousands of seeds.  In Mr Jeffries’ house the Police found cannabis drying, four sets of scales, a hidden Luger pistol complete with ammunition, and $2,000 in another ammunition tin.

[16]     After pleading guilty to the charges relating to both growing operations, he was sentenced to six and a half years for the earlier cultivation and possession for supply.  For the Halcombe cultivation and possession of a pistol he was sentenced to concurrent terms of two years imprisonment, cumulative upon the six and a half years for the Te Kuiti operation.  In dismissing Mr Jeffries’ appeal this Court commented at 137:

Bearing in mind our previous comments about the way the Judge dealt with the Halcombe charges, and the fact that the accused has demonstrated a settled resolution to engage in cannabis production and dealing on a substantial scale, and the presence of the pistol and ammunition, we are unable to say that the aggregate sentences, while severe, are wholly out of proportion to the gravity of the offending, viewed as a whole.

There is nothing in the judgment about Mr Jeffries’ criminal record, if he had one.

[17]     Next is Daley.  We refer only to the principal offender, Mr Stephen Daley, because the comparison is with him.  He had established a large and sophisticated hydroponic cannabis growing operation in a shed on a farm property south of Kaikoura.  Although notionally a deer shed, it was purpose built for hydroponic growing.  Over 3,300 maturing plants were under cultivation, and, in the propagation area, 3,780 seedlings were growing.  2,325 mature plants or portions of plants were being dried in the processing area, from which 23.3 lbs of processed cannabis head was recovered.  The hydroponic beds had a growing capacity of 8,215 plants at a time.  Based on Mr Daley’s admission that he had already sold 40 - 50 lbs of cannabis for $5,000 per lb, the Police estimated that the potential return per crop (and there would be at least three each year) was about $500,000 at full production.

[18]     Mr Daley was 49 and a first offender.  He had resorted to cannabis cultivation in an endeavour to solve financial problems resulting from the breakdown of his marriage.  He pleaded guilty. 

[19]     In allowing the Solicitor’s appeal against the sentence of five years imprisonment imposed by the High Court and substituting an effective total sentence of seven years imprisonment, this Court stated:

[18]     We are in no doubt that the present sentences are manifestly inadequate and out of line with those imposed in comparable cases [which the Court then reviewed].  …

…

[25]     In the case of Christopher Daley we consider that the appropriate sentence for cultivation is 5½ years’ imprisonment and for selling cannabis 1½ years imprisonment, cumulative.  …

[20]     In R v Wilson CA273/04 13 December 2004 this Court allowed an appeal against a sentence of five years imprisonment for cultivating cannabis.  Mr Wilson and his co-accused had cultivated and tended a plot of 1,200 cannabis seedlings in a forestry block north of Dargaville.  Police recovered 520 mature, high quality, female cannabis plants that were in the early stages of producing high quality cannabis head material.  Police estimated they would have yielded cannabis head with a value of between $900,000 and $1.2 million.  Although this Court agreed with the Judge’s sentencing start point of five years, it considered the uplift for two minor previous convictions should be only six months and that an 18 month discount was required properly to reflect the early guilty plea.  A sentence of four years imprisonment was substituted.

[21]     More recently, the High Court imposed a sentence of four years three months imprisonment in R v Anaru HC WN CRI 2006-091-236 7 April 2006.  Mr Anaru was sourcing large quantities of cannabis plant from the East Coast, rolling them into “tinnies” in his home and selling them.  He was selling about 150 tinnies per day for $20 each.  In Mr Anaru’s basement the Police found over a kilogram of high quality cannabis head with a street value of around $7,000, 30 tinnies, a firearm and a disguise.  At another address the Police found similar high quality head material worth $3,000 together with 55 tinnies and a Police scanner.  Mr Anaru pleaded guilty to three charges of possession for supply of cannabis, two of selling cannabis and one of unlawful possession of a firearm.  The sentencing start point was four and a half years.  Aggravating factors requiring a one year uplift from this start point were 19 previous convictions for similar offending, the firearm and offending while on bail.  A reduction of 15 months for the guilty pleas resulted in an end sentence of four years and three months imprisonment.

[22]     Although Jeffries featured large scale cultivation, aggravated by possession of a pistol, it lacked selling, cannabis resin production or supply of cultivating equipment.  A further distinction was that the successive cultivations were outdoors.  Indoor cultivation can yield three or even four crops a year.  The report does not state whether Mr Jeffries had relevant previous convictions.  Daley also featured large scale cultivation, this time indoor hydroponic cultivation, but there were no firearms and Mr Daley was a first offender.  Wilson was cultivation only, Anaru selling and possession for supply, aggravated by possession of a firearm.  This case had the features of each of those four cases, albeit hydroponic cultivation on a more modest scale than Daley.  But the Judge also had to factor in the DHL operation, and Mr Watson’s lengthy record of cannabis related offending.  Accordingly, we consider the sentence under appeal is in line with the four cases we have mentioned.

[23]     We comment briefly on Mr Nisbet’s points.  There is nothing in his first.  Assuming the DHL business started with legitimate aims, it operated illegitimately for at least 11 months.  This was hardly an isolated lapse by Mr Watson back into cannabis offending.

[24]     Second, we do not see the basis for Mr Nisbet’s submission that the Judge allowed deterrence to outweigh a proper consideration of Mr Watson and his offending.  Nowhere in his sentencing remarks does the Judge refer to any need to impose a deterrent sentence.  All that the Judge said was directed to Mr Watson as the offender, and to the detail and scale of his offending.

[25]     We have already mentioned that the Judge noted Mr Watson’s age.  He noted also Mr Nisbet’s sentencing submission that “at the age of 67, the likelihood of Mr Watson ever reoffending in such a significant way is remote”.  We have considered the fact that Mr Watson, now 69, will be in his 70s when released from prison.  While his age is a sentencing consideration, he committed these offences when he was 65 - 66 years of age.  It is not historic offending.  Moreover, the sentencing materials indicate that he is physically fit and healthy for his age, and remains highly motivated.  Overall, we accept Mr Downs’ submission that Mr Watson’s age is outweighed by the need to protect the community from Mr Watson’s repeated offending.  This policy was spelt out by this Court in R v Ward [1976] 1 NZLR 588, and is now mandated by s 7(1)(g) Sentencing Act 2002.

[26]     The Judge also noted Mr Watson’s attempts to rehabilitate himself, and specifically accepted them as a mitigating factor.  He observed at [23]:

You at least now are able to see that many of the views about cannabis that you have held for many, many years are distorted, obsessive and deeply entrenched.

[27]     And we have also pointed out that the Judge accepted that Mr Watson had a very long and severe addiction to, indeed obsession with, cannabis.

[28]     In short, none of the points pressed on us by Mr Nisbet escaped careful consideration by Judge Davidson.

Result

[29]     The sentence under appeal is not manifestly excessive.  In our view it is a response, stern but within the available range, to a prolonged period of large scale offending by a man undeterred by some 12 sentences of imprisonment imposed on him over the last 36 years for comparable offending (in which we include sentences imposed only for possession of cannabis plant or extract).

[30]     Accordingly, we dismiss the appeal.

Solicitors:
V C Nisbet, Wellington for Appellant
Crown Law Office, Wellington